In general, courts are wary about modifying orders that designate the parent with the sole duty to determine the primary residence. This is the case mainly because courts do not want to shake up the stability and consistency in a child's life by flip-flopping where they reside primarily.
In situations where you file a modification suit within one year of a prior case where the parent with the exclusive right to determine your child's primary residence has been established, you will need to jump through additional setup hoops to win your case.
First and foremost, you will need to show a court that your child's present environment is a potential danger to your child's physical health or emotional development. Abuse and neglect at their other parent's home immediately come to mind here. If they are doing drugs in the house, selling drugs in the home, or engaging in violent behavior, extreme examples could satisfy this first requirement.
Secondly, suppose the other parent has the exclusive right to determine the primary residence of your child consents to your filing a modification on this subject. In that case, your case will be allowed to proceed. This does not occur with any great frequency, and you should not expect to have your counterpart willingly agree to the modification. Your child's best interests will also be looked at even if the other parent agrees to the change you are requesting.
Finally, if the other parent has voluntarily relinquished control and possession of your child for at least six months, then the modification you are seeking may be granted. This means that they could have willingly given up control and care of your child to you or any other adult for six months.
If a judge does not find that one of these three circumstances is present in your situation, then your modification suit will not be allowed to proceed.
Modifying a child support order
One of the more frequent consultations that I am involved in with the Law Office of Bryan Fagan, PLLC, consists of a parent interested in modifying a child support order. This could mean that the parent is interested in either increasing the other parent's obligation or decreasing their responsibility to pay child support.
Just as with any other type of modification case, certain circumstances must be proven to be in place to modify a prior order on child support. The material and substantial change in circumstances in either the child or any party to the enforcement suit must be shown. Secondly, there must have been at least a three-year gap between the time the prior order was rendered and the current modification suit.
Filing an enforcement case in Family Law Court
There is nothing more frustrating than going through an entire case- whether a SAPCR or divorce case- only to have the other party fail to follow through on their end of the bargain. Whether they are not paying child support correctly or have repeatedly failed to make your child available for visitation with you, there are remedies for their failure to abide by a family court order.
Enforcement cases in Texas involve elements of civil and criminal law and reasonably complex procedural issues. The failure of the other party to your court order to obey the declaration itself is known as contempt of court. Fines and jail time are possible remedies for this failure to adhere to the court orders. Criminal contempt findings involve jail time for up to 180 days and a fine not to exceed $500 per violation of the court order.
Look to the language of the original order to determine the specifics of how the other party was supposed to do something. The language in that order must be clear and concise- meaning that there must not be any question as to how an act was supposed to be performed. If the order is subject to multiple interpretations, there may be an issue in attempting to enforce the order later on.
An enforcement motion must be filed with the court to enforce an order regarding conservatorship, child support, possession, and access. Issues that do not involve children, including property division, spousal support, or debt payment, may also be dealt with by filing an enforcement suit.
Requirements of the motion for enforcement
In the enforcement motion, you or your attorney must specify the type of punishment (civil, criminal, or both) that is being sought. Be aware that you should not ask for more than 180 days as a jail sentence in an enforcement case.
If you ask for more than 180 days, the other party can request a jury trial and seek an attorney appointed to represent them if they cannot afford one.
Regarding enforcement cases for child support, the amount of child support owed must be specified and the amounts paid (If any) and the part that is still outstanding must be stated as well. It is good to note the portion(s) of the order that has been violated with the specific dates the violations have occurred and the amounts due/amounts paid.
Please be aware that enforcement for child support purposes must be filed no later than six months after the child becomes an adult or the child support order ends, per the order. One thing to be especially aware of is that if you seek to collect child support arrearages under an order, there is no deadline to file by, and you can do so indefinitely.
Property Division Enforcement
Any property sought to be divided in a divorce must have existed when the divorce was finalized.
After that, any modification suit must have been filed within two years of the final decree signed off by the judge in your case.
Notification of the opposing party to your enforcement suit
Unlike other family law cases, your enforcement petition must be personally served on the opposing party. There must also be an order for them to appear for a hearing with the petition.
Your opposing party is entitled to having ten days to prepare for this hearing. If you serve them within ten days of the hearing, they will still need to appear at the hearing to be "sworn" to reappear at a future date and time by the judge or their clerk of the court.
Child Support and other defenses to be outlined in tomorrow's blog post
Come on back tomorrow to read through some reasons for child support enforcement cases and other enforcement suits. If you have questions about anything you've read through today or anything posted over the past few days, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC.
One of our licensed family law attorneys will be happy to meet with you in a free-of-charge consultation to answer any questions that you may have. Thank you for your time, and we hope to have you back tomorrow to learn more about Texas family law cases.
For any other type of enforcement case, you must identify the provision in the order that has been violated, state how the other party has not complied, request specific relief, and then contain your attorney's signature after the document.
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Other Articles you may be interested in:
- Family Law Enforcement Hearings: Agreements to Settle and Trial
- Reviewing your case history is crucial to success in an enforcement case
- Texas Family Law Court: Enforcement Actions
- How much will your child support enforcement case cost?
- The Steps of an Enforcement Case in Texas family law court
- Preparing for an Enforcement case in Texas
- Defending against an Enforcement Action in Texas
- Enforcement Suits in Texas Family Law, Part Two
- Enforcement Suits in Texas Family Law: An Overview
- Child Support Enforcement Defense - Act Sooner Rather than Later
- Can my Texas Driver's License Be Suspended for Not paying Child Support?
- A Tale of Two Parents: Enforcing Child Custody Orders in Texas
- Uniform Child Custody Jurisdiction and Enforcement Act
- Reasons to not file a Child Custody Modification Suit in Texas